Donor for Baby – An Agreement Between Friends

Gestational surrogate before childbirth. Pregnant woman standing with future gay parents. Baby expectation. Lgbtq+ family. Pride parade. Are you considering asking a close friend to be a donor for your baby? Will your friend have rights to parenting time, decision-making or be responsible for child support?

This article addresses a donor who wants to remain friends with the recipient and, therefore, will spend time around the child but does not want to be responsible for child support or the recipient does not want the donor involved in decision-making for the child or to have entitlement to parenting time with the child. Please note that the information in this blog deals specifically with the donor parent.

The laws governing surrogacy and surrogate parents are different. A surrogate mother is a female person who intends to surrender the child at birth to another person. Thus, this article is only about a male sperm donor to a female recipient.

The Assisted Human Reproduction Act outlines certain prohibited activities, such as the payment for purchasing ova, sperm, and embryos from a donor. A donor of an ovum or sperm must be at least 18 years old, except to preserve it when the donor believes they will be raising the child.

The Children’s Law Reform Act addresses who is considered a parent and how to determine when a donor becomes a parent with support obligations. The person who provides the sperm in the conception of a child is considered a parent unless that person is a donor. If a person donates sperm using sexual intercourse but does not want to be a parent, the parties must sign a written donor agreement before the child is conceived, whereby the parties agree that the donor does not intend to parent the child.

Although the donor meets the requirements not to be considered a parent, if the donor develops a relationship with the child with the settled intention to parent, the donor may be at risk of a successful child support claim. Some factors in determining if a donor can be considered a parent are: is the donor living with the child; is the donor providing financial support to the child; what does the child call the donor; how does the donor treat the child; and is there social and public knowledge that the child is treated as theirs?

If the recipient was married, the recipient’s spouse shall be recognized as a parent unless the spouse did not consent to be the child’s parent.

A donor agreement is important to express the parties’ expectations to avoid litigation in family court. Among other factors, you may consider including the following:

  • Disclosure of the donor’s full medical history or a warranty that it has been provided
  • Set out the intentions of the parties with reference to the Assisted Human Reproduction Act and the Children’s Law Reform Act
  • The procedure involved
  • Parental rights and the relinquishment of same, such as a release from child support obligations
  • Reimbursing the donor of their out-of-pocket expenses that would not have occurred “but for” the donation
  • Terms of default, assumptions of risk, rights of termination, and confidentiality
  • Property rights for unused donated material and embryos

If you are considering starting a family and have questions about your rights and responsibilities, the team at Malicki Sanchez Law is available to assist.

This article is intended to serve as a brief overview of the topic and not as legal advice. Certain legal presumptions and exemptions may affect determining factors of a person’s rights and responsibilities as a parent or donor. You should speak with a lawyer experienced in this field for more information specific to your situation.

Gibrian Malicki-Sanchez wrote this article with the assistance of Georgia Sambrano.